Les Bois v. Bramell. 4 H. The granting next, whether conditions had been performed, &c. power was in a great degree political, and altogether the exercise of royal authority, and of course subject to no supervision but by the same high authority itself. By the treaty,1 the United States assumed the same exclusive right to deal with the title in their political and sovereign capacity, nor could the courts of justice be permitted to interfere; if they could, and by their decrees complete the title, all power over the subject might have been defeated, not by the courts. of the Union only, but by the state courts also. And, therefore, the contemporary construction and practical understanding of the treaty for forty years has been, that claims like the plaintiff's had no standing in a court of justice until confirmed by congress, or by its authority. Next, it is insisted that the confirmation of 1836 estab [* 462 ] lished the * original validity of Les Bois's title; that this stands as an adjudged and concluded fact, which a court of justice cannot controvert; and the confirmation having operated on the concession of 1802, therefore, by relation, it overreaches the confirmations of the town common of 1812 and 1831. The doctrine of relation in an action of ejectment, by which the legal title by patent is made to take date from the entry or inception of title, is familiar in some of the States, and has been acted on in this court. It applies where both the litigant parties have a grant; the case of Ross v. Barland, 1 Pet. 655, was of this description. There, the younger patent was founded on the best right in equity, standing in advance of either patent, and the equities were tried at law. But if the elder or better entry had not been carried into a grant, a court of equity might have administered the same measure of justice, and decreed the land from the patentee, whose legal title was founded on the inferior equity. This is the constant practice in the state courts in similar cases. But when courts of law go behind conflicting patents, and contest the equities on which they are founded, it has never been held that the patent aided the equitable title; it must come in support of the grant, and stand on its own merits. So in this case; the plaintiff admits her grant, of itself, is insufficient to authorize a recovery, and that she must go behind it; -and there she is met by the objection, that her claim had no standing in a court of equity or of law, up to the date of its confirmation, and depended on the political power. The plaintiff's assumption comes only to this, that the United States erred in granting the common first, in prejudice of her better right to have the first grant. To 18 Stats. at Large, 200. Les Bois v. Bramell. 4 H. this assumption, the answer is, that if the sovereign power wronged her, she is without remedy in a municipal court. The second instruction given by the circuit court was, that the notice of claim filed with the recorder and exhibited to the board was evidence of the extent of said claim to commons. The competency of the evidence was not objected to on the part of the plaintiff'; it was such as she herself resorted to, for the establishment of the extent and boundary of her own claim, and, aside from the legal and official survey of the commons made in 1832, is the only evidence of boundary that is likely to exist at no distant future day, and was the usual evidence introduced to prove the fact before the survey of 1832 was made. The court gave no opinion on its effect, but properly left it to the jury. The third instruction is, that if the jury believed the land in dispute to lie within the bounds of the common confirmed by the acts of 1812 and 1831, then they should find for the defendant. The first consideration on this instruction arises on the act of July 4, 1836, by which the plaintiff's claim was confirmed. The fact, that claims embraced by the act interfered with lands *previously granted or sold by the United States, was well [* 463 ] known to the commissioners, and in their report of 27th November, 1833, (5 D. Green's State Papers, 702,) they state for the information of congress, that "there are numerous cases of lands lying within these French and Spanish claims belonging to individuals whose right or claim originated under the government of the United States; some depend on purchases; some on the law allowing preemptions; some others on New Madrid locations; and some again upon settlement rights which have been confirmed;-that most of these persons have been for a long time settled on their lands; their claims being of a bona fide character, derived from the government of the United States, they went on to improve their lands, making for themselves and families comfortable homes, without any belief that they would ever be interrupted in their possessions; that should the claims reported by the board be confirmed by congress, in whole or in part, congress will, in their wisdom, no doubt notice the suggestions here made, and carve out such a course as will quiet the uneasiness and anxiety which are felt, by doing every thing which even the most scrupulous demands of justice could require." In view of this report, congress passed the aforesaid confirmatory act, which declares: "That if it shall be found that any tract or tracts confirmed as aforesaid, or any part thereof, had been previously lorated by any other person or persons, under any law of the United or had been surveyed and sold by the United States, this act States, Les Bois v. Bramell. 4 H. shall confer no title to such lands in opposition to the rights acquired by such location or purchase; but the individual or individuals whose claims are hereby confirmed, shall be permitted to locate so much thereof as interferes with such location or purchase on other lands of the United States," &c. The officers of the government administering the land department, bad to construe this law with its exceptions; the matter was referred to the attorney-general, and in September, 1842, he gave it as his opinion, that the confirmations must yield to prior confirmations; school sections, ordinary sales prior to the act of July 4, 1836, &c. A confirmation of a Spanish or French claim, either by a board of commissioners under the act of 1807, or by congress directly, or by the district courts by force of the act of 1824, is a location of land by a law of the United States; surveys have been made and patents issued for such land in the great majority of instances, and it cannot be questioned, as we think, that a title thus protected by patent was intended to be carved out of the act of 1836; nor is it perceived how the St. Louis common can be in a worse condition, as the acts of 1812 and 1831 did not contemplate any further grant than the acts themselves import, and this conclusion is greatly strengthened by the following considerations. The plaintiff's claim, and all others of a similar character [* 464] within the St. Louis common, that is, such as the board of commissioners from 1806 to 1812 had examined and rejected, were well known to congress when the act of that year, confirming the common, was passed; the report of the board had just then been returned to congress, and Mr. Penrose, one of its members, and Mr. Reddick, the clerk, were at Washington, as appears by their letters. The two of Mr. Penrose were communicated to the house of representatives, and that of Mr. Reddick to the chairman of the committee of public lands, 2 American State Papers, 447-451; they gave the information on which congress proceeded in acting on the report, as the letters plainly show. The same information was part of the public and printed documents of congress when the second confirming act of 1831 was passed; and when it was known, Spanish and French pretensions to claim conflicting with the common stood barred. In 1832, the common was officially and legally surveyed, pursuant to the act of May 26, 1824, and the survey stood recorded in due form in 1836, when the plaintiff got her title. These laws, and the acts done by the United States in pursuance of them, we suppose, made and located the common's title as effectually patent could have done, and brought it within the exception of the act of 1836; and that the plaintiff, Les Bois's, confirmation was in Brown v. Union Bank of Florida. 4 H. tended to give her land elsewhere, without disturbing the opposing title. For another reason, we think the instruction was proper. When the country was acquired, the title to the land in dispute passed from France to the United States; on this government was imposed the duty by the treaty to satisfy individual and unperfected claims. This was to be done in a due exercise of the political power, to whose justice alone the claimant could appeal, and to whose decision she was compelled to submit; and there being two adverse claims to the same land, equally inchoate, and the government, being unable to confirm both, was under the necessity of determining between them; and, having granted the land to one, necessarily rejected the pretension of the other to the same land; and, therefore, the first grantee took the legal and exclusive title. But where there is a second confirmation, as in the instance before us, then the justice of the government must be relied on by the second grantee for compensation; and this compensation the act of 1836 has provided. The last ground is the one on which the decision in the case of Chouteau ?. Eckhart proceeded, in regard to the St. Charles common; and which doctrine, we think, applies equally to the present controversy. For the several reasons above stated, it is ordered that the judg ment of the circuit court be affirmed. 4 H. 421; 7 H. 586; 8 H. 317; 9 H. 421; 10 H. 348; 19 H. 79, 334; 22 H. 334. THOMAS BROWN, Plaintiff in Error, v. THE UNION BANK OF FLORIDA, Defendant in Error. 4 H. 465. A writ of error does not lie upon a judgment of a court of appeals, reversing a judgment of an inferior court, and remanding the case for further proceedings; it is not a final judg ment. MOTION to dismiss. Thompson and Coxe, for the motion. Brockenborough and Eaton, contrà. *M'LEAN, J., delivered the opinion of the court. [ * 466 ] A motion is made to dismiss this writ of error, because the judgment of the court below was not final, and there has been no service of the citation. The motion is granted. The judgment below reversed the judgment of an inferior court, and remanded the cause to that court, with instructions to award a venire facias de novo; it was, therefore, not a ünal judgment, on which only a writ of error can issue. Aspden v. Nixon. 4 H. ASPDEN and others, Complainants, v. Nixon and others, Defendants. 4 H. 467. A decree, made in the high court of chancery in England, in a suit wherein an administrator appointed there is complainant, and an executor qualified there is defendant, does not estop an administrator appointed in Pennsylvania, from suing the same executor qualified in Pennsylvania, upon the same title asserted in the English bill, the subject-matter of the first suit being assets in England, and of the second suit, assets in Pennsylvania. APPEAL from the circuit court of the United States for the district of East Pennsylvania. The following statement, prefixed to the opinion of the court, supersedes the necessity of any further statement. In 1791, Matthias Aspden, a subject of the king of Great [* 468] * Britain, and domiciled there, being in the State of Pennsylvania, where he had formerly resided, made his will, whereby he devised his property to his heir at law, with the exception of some trifling specific bequests. He died in England, in 1824, (which country continued to be his place of domicile,) leaving much property there, and also much in Pennsylvania. The only surviving executor named in Matthias Aspden's will was Henry Nixon, of Philadelphia, who proved the will, and took out letters testamentary in the orphans' court of Philadelphia county, in November, 1824 ; and he did the same in the proper court in England, in 1825. The testator left no children, and different persons claimed to be the true devisee, within the description of "heir at law." In 1828, Samuel Packer filed his bill against the executor, Nixon, in the circuit court of the United States for the eastern district of Pennsylvania, alleging that he, Packer, was the devisee, and praying the estate might be distributed to him. Under this bill, numerous complainants came in by petition, representing themselves to be the next of kin and the true devisees in Pennsylvania, and claiming parts of the estate; and in December, 1831, John Aspden, of the county of Lancashire, England, was admitted to come in as co-complainant, he claiming to be the rightful heir at law and devisee of Matthias Aspden. In favor of this latter claimant a decree was made in 1833, and the bill ordered to be dismissed as to all other claimants. A portion of the latter appealed to this court. In 1834, Janet Jones, Thomas Poole, and Mary, his wife, moved to file a supplemental bill and bill of review in the circuit court; the said Janet and Mary claiming to be heirs at law of John Aspden, of London, who was the heir of Matthias Aspden, at the time of Matthias's death, as they alleged. This motion was overruled, as |